Two Conflicting Views of the NSA’s Future

by Charles C. W. Cooke

Yesterday brought with it two contrasting views of the value of the NSA’s domestic surveillance, and, too, of the merits of the review board’s proposals. From the New America Foundation, a bold claim:

. . . our review of the government’s claims about the role that NSA “bulk” surveillance of phone and email communications records has had in keeping the United States safe from terrorism shows that these claims are overblown and even misleading.  An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal. Indeed, the controversial bulk collection of American telephone metadata, which includes the telephone numbers that originate and receive calls, as well as the time and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, appears to have played an identifiable role in initiating, at most, 1.8 percent of these cases. NSA programs involving the surveillance of non-U.S. persons outside of the United States under Section 702 of the FISA Amendments Act played a role in 4.4 percent of the terrorism cases we examined, and NSA surveillance under an unidentified authority played a role in 1.3 percent of the cases we examined. 
Regular FISA warrants not issued in connection with Section 215 or Section 702, which are the traditional means for investigating foreign persons, were used in at least 48 (21 percent) of the cases we looked at, although it’s unclear whether these warrants played an initiating role or were used at a later point in the investigation.
A few hours later, the Center for Security Policy pushed back, noting that the New America Foundation’s authors did not see any classified information and that their report admits that “in 28% of the cases we reviewed, court records and public reporting do not identify which specific records initiated the investigation.” The CSP’s own view:

The Review Group’s recommendations on the NSA metadata program would eviscerate an important counterterrorism program and create real privacy concerns.  The President should instead work with the Senate and House Intelligence Committees on new legislation to bolster these capabilities.
The Review Group’s notion of extending U.S. privacy rights to non-U.S. persons outside the United States and barring intelligence agencies from collection against foreign persons based on their religious or political beliefs should be categorically rejected on national security grounds.
The Review Group’s recommendation to add additional layers of bureaucracy to the intelligence collection process would greatly slow down that process and create new security concerns.
The Review Group’s recommendations to add additional privacy officials to the intelligence-gathering process are a solution in search of a problem, and would overlap the existing Privacy and Civil Liberties Oversight Board.
While making the NSA Director a Senate-confirmed post is long overdue and will help restore public confidence, the Review Group’s other recommendations for NSA organizational reform are unnecessary steps that would interfere with NSA effectiveness.
The Review Group’s recommendations barring US intelligence agencies from cracking internet encryption methods or penetrating computer software would greatly undermine critical intelligence collection.  Terrorist communications and software must be maintained as legitimate targets for the NSA.
The pursuit of international norms or agreements to prohibit cyberwarfare or industrial espionage is unrealistic and will be disregarded by adversary nations which will take advantage of such self-imposed restraint.
Most of the Review Group’s proposals on security clearance reform are supportable in principle, but require further study by an intelligence clearance task force.

The full CSP report and recommendations are here.


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